Laying Down the Law – “It takes a bit from this box, & a bit from that box…”

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Last month, members of New Zealand’s Parliament demonstrated the dangers of inter-generational politics gone wrong. Under Parliamentary urgency (the abuse of which is a topic that deserves a column all to itself) the Copyright (Infringing File Sharing) Amendment Bill was passed. The Act adds new provisions into the Copyright Act—the main piece of legislation regulating copyright and intellectual property in New Zealand.

The Act allows copyright owners to enforce their rights more effectively against internet downloaders. Those of you who have lived (or are living) in a University hall of residence, or have looked over the shoulder of someone streaming “Never Say Never” on University computers, will know that students are partial to a little bit of ‘try before you buy’. So this new law is concerning, especially for our new-age techno-citizen generation, who Tweet and Tumblr our first-world problems incessantly around the globe.

But there seems to be a little hysteria in the air, whipped up at least in part by politicians who see the Act as an opportunity to point-score. Perhaps it’s time to clear the air and take students through the new law and its effects, step by step.

The legislation gives new enforcement powers for copyright holders. In particularly, the rules relating to infringement notices have been tidied up, and new processes regarding the Copyright Tribunal have been added.

Section 122B allows copyright holders to force Internet Service Providers to issue three kinds of infringement notices: a detection notice (noting that you’ve been illegally infringing copyright); a warning notice (a notice telling you to stop); and an enforcement notice (a notice telling you that the copyright holder is pretty pissed off and is exercising enforcement of their rights). Once these notices have all been issued, the copyright holder may then apply to the Copyright Tribunal for a damages order for a maximum of $15,000, or to the District Court for the suspension of your Internet account.
It is that second option which is most contentious. Access to the net is a pretty big deal, and termination is a big call for any court to make.

The procedure for suspension is outlined in Section 122O. A copyright holder can apply to have an account holder’s Internet connection cut off for a maximum of six months if the District Court is satisfied that: at least one enforcement notice has been issued to you (and that its issuing complies with the process outlined in the Act); that the account holder has, through file sharing, infringed the copyright of the person seeking the order; and finally, that suspension of the account would be justified, when balanced against the circumstances and the seriousness of the infringing.

This process is pretty rigorous, and clearly outlines significant hurdles that need to be cleared before the Motion Picture Association of America can kick you off the net. And if you’ve just finished downloading American Pie 7 in the Murphy Cybercommons, you can breathe an additional sigh of relief: Section 122PA of the Act stops copyright holders from even using suspension orders until a date is set by an Order in Council. What this means is effectively the power to ask for the termination of Internet accounts has been ‘frozen’ until the Government decides to ‘unlock’ it. However, it is not Parliament that gets to make that decision. An Order in Council is made by Cabinet and the Governor General, and will not get debated or voted on by the House of Representatives.

But even with these restrictions, the legislation has attracted significant criticism. The first concern is that the law is unworkable. The process outlined is complicated, and may not give copyright holders the opportunity to exercise their rights. Applications to tribunals are time consuming and expensive. As a consequence, only large corporates are going to be able to utilise the law’s powers effectively. This is bad news for small start-ups and emergent developers—particularly Kiwi ones—who may not be able to rely on the Act to protect their ideas.

Secondly, the Act is focused on the account holder, rather than the downloader of illegal material. This poses problems for large institutions such as Universities and even for flats where there are a large number of users under one account. The Act also places a strong procedural onus on Internet Service Providers to provide information about their users when copyright holders request this information. This power is something ISP customers are going to be furious about, and ISPs are begrudgingly going to have to put in place systems for managing these requests properly.

Access to the Internet is not considered a human right in New Zealand, but it has been recognised as such in Finland, and to lesser extent in France. However, the bill may breach your right to be presumed innocent until proven guilty, found in section 25(c) of the Bill of Rights. Section 122MA states that infringement notices are conclusive evidence of copyright breaches. This is only a presumption, and users can bring evidence to the contrary, but prima facie it is in breach of the presumption of innocence. Additionally, what standard of proof is required to rebut the presumption is unclear. This is important, as a higher burden will make it more difficult for users seeking to defend themselves before the Tribunal.

Behind these concerns and the Acts new powers is a deeper issue. It’s the question about how New Zealanders want to treat the regulation of intellectual property and the corporatisation of ideas. That debate is complicated and vexing. But it’s one that we as a polity will need to have if we are ever going to see legislation that is both democratic in a new world of megabytes and access, and responsive to the tension between economic realities and creativity.

Conrad is a very grumpy boy. When he was little he had a curl in the middle of his forehead. When he was good, he was moderately good, but when he was mean he was HORRID.
He likes guns, bombs and shooting doves. He can often be found reading books about Mussolini and tank warfare. His greatest dream is to invent an eighteen foot high mechanical spider, which has an antimatter lazer attached to its back.

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